Every family faces its own challenges going through a divorce; families that have children with special needs may face more challenges than most. Depending on the
age of your child and the nature of their needs, divorce or dissolution with a special needs child requires extra planning to make sure that your child is both emotionally and financially secure. As with most things, taking the time and committing the resources to create a strong foundation will pay dividends in years to come.
Financial Issues in Divorce with a Special Needs Child
Child support can be a difficult issue to resolve in any divorce. When you have a child with special needs, you need to pay particular attention not only to any unusual expenses your child might have, but to how support payments might affect the child’s eligibility for needed benefits before and after they reach the age of majority.
Divorce, dissolution, and separation with a special needs child often has different considerations than other cases. While child support generally terminates at age 18, in Ohio, a parent can be ordered to pay child support after a child turns 18, for a child’s lifetime if the child is unable to become self-supporting. In Ohio, a “Castle” child is one who is mentally or physically disabled and is incapable of supporting or maintaining himself or herself and is owed the duty of support beyond age 18 when the disability began before age 18, per the holding of Castle v. Castle, 15 Ohio St. 3d 279 (1984). Many parents, especially those with younger children, don’t want to believe that their child will never be able to live independently or provide for themselves. However, if there is any chance that your child will need lifetime support, you must at least plan for that contingency.
That means thinking about what will happen if the parent paying child support were to pass away while support is still needed. It’s always important for a child support obligor to have a life insurance policy to cover support needs. It’s even more critical when the support is for a child with special needs. The order for support should require that the obligor (the person who pays child support) purchase a life insurance policy sufficient to cover anticipated child support needs. It should also require the obligor to present the obligee (person who receives child support) at least annually with proof that premiums have been paid. Agreements often provide that both parents carry life insurance policies and name minor or dependent children as beneficiaries.
Be sure to work with a family law attorney who understands the interplay between child support and eligibility for government benefits. A properly drafted special needs (or supplemental needs) trust can ensure that child support payments do not jeopardize eligibility for means-tested benefits. A special needs trust can also be the beneficiary of the parents’ retirement accounts, ensuring both that assets are protected for your child and that they don’t risk eligibility for benefits.
Ohio has one of the first ABLE programs in the nation. It’s called Ohio STABLE, and it allows residents of other states to participate in the program. ABLE accounts are bank accounts that allow parents of special needs children to save money without jeopardizing benefits. ABLE accounts come from the federal ABLE (Achieving a Better Life Experience) Act, but they are established and managed on a state level. These accounts can be used to provide for the child instead of child support, especially important as a child nears age 18.
You and your attorney should discuss any therapy, camps, or programs your child is involved in, even if those programs are at no cost to you at the moment. Public funding ebbs and flows. A program that is free right now may start charging a fee or shut down altogether, forcing you to find a private (and costly) equivalent.
If you don’t mention responsibility for the cost of a program in your settlement agreement, what happens if the program loses funding, and your child still needs the services? You could be on the hook for the fees if your co-parent doesn’t voluntarily chip in. Your child support order should provide that parents will either share the cost of any therapy, camp, or other programs equally, or proportional to their incomes.
Decision-Making for a Child with Special Needs
Many divorced, separated, and never-married parents struggle with decision-making responsibility even for children without special needs. For children with special needs, the stakes are even higher. There are likely to be more medical decisions; therapies and procedures may be more costly and perhaps controversial; and the need to make decisions together could extend for decades.
If you and your child’s other parent are both deeply involved in your child’s life, that’s great. Presumably you will both want to continue that after the split by sharing decision-making power. You should decide in advance how you will resolve disputes regarding education and health care. Will one parent have tie-breaking authority on certain issues? Will you agree to mediate disputes? Will you turn to an advisor for help in making decisions? Be sure to specify that in your settlement agreement.
If your spouse is not active in managing your child’s care while you were together, trying to get him or her to cooperate in decision-making after the split could be challenging. You may also struggle to get your co-parent to comply with scheduled treatment, especially if he or she thinks it is unnecessary or ineffective. If possible, you should have a provision in your settlement that your co-parent agrees to the need for each of your child’s current therapies. That way, he or she cannot come back later and dispute the need for the treatment or claim that it is experimental.
If it is likely that your child will need someone to continue to make major decisions on his/her behalf after reaching adulthood, you will need to plan to become your child’s legal guardian. This is a process you will want to put in motion before your child turns 18; even though you have cared for and made decisions for your child for his or her whole life, you will need legal permission to continue doing so.
Divorce, dissolution and separation is stressful under the best of circumstances. Going through the process while trying to plan and care for a child with special needs makes it even harder. Be sure to care for yourself and to get the help you need while navigating the process. If you have questions about divorce with a disabled child, please contact Melissa Graham-Hurd & Associates to schedule a consultation.
